Legal Ethics Roundup No. 25 - MLK, More Romance Ethics, Model Rule 1.8 Humanitarian Exception, 1st Am Protects Prosecutor, Overbilling, Bar Alternatives, Jobs, Events & More (1.15.24)
The Legal Ethics Roundup - your Monday morning tour of all things related to lawyer and judicial ethics with University of Houston law professor Renee Knake Jefferson
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Thank you for being here. Welcome to what captivates, haunts, inspires, and surprises me every week in the world of legal ethics.
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Today we honor Dr. Martin Luther King, Jr. You may be surprised to learn that this is a relatively new federal holiday. (More on that in “This Week in Ethics History” below.) The first page in my new book Law Democratized: A Blueprint for Solving the Justice Crisis features this quote from Dr. King:
Last week Law Democratized hit the shelves (and the mailboxes)! Thanks to the pre-orders from many of you, it debuted as the #1 new release in “Legal Education” on Amazon. Don’t have your copy yet? Order it from Amazon, your local bookstore, or even better, save 30% and order it direct from my publisher NYU Press with this code — NYUP30.
As part of the book’s launch, I sat down with the American Bar Association Journal’s Lee Rawls to talk about it on her podcast The Modern Law Library. She opens our conversation with a reminder that in 2013, the ABA Journal named me as a Legal Rebel. Together, we looked back at the past decade and discussed the book’s coverage of research and experimental programs aimed at improving access to justice—the successes and the failures. And I reveal what I’m hoping to accomplish with my justice blueprint. Read more from Rawls and listen to the podcast here (50 minutes). The book also got a bunch of great shout-outs, including this thoughtful post by Francine Bennett.
Now, onto the Roundup!
Highlights from Last Week - Top Ten Headlines
#1 Allegations of Misconduct Against D.A. Fani Willis in the Trump Indictment. Willis has been accused of inappropriately hiring her romantic partner as a special prosecutor in the case. Here’s what I told New York Times reporter Nicholas Bogel-Burroughs:
Renee Knake Jefferson, an ethics expert and a law professor at the University of Houston Law Center, said she thought that the filing included serious allegations but that they were not likely to tarnish the indictment. “A personal relationship between two prosecutors does not change the facts and evidence upon which the indictment was based,” Ms. Jefferson said.
Ms. Jefferson said it was important to get to the bottom of the nature of the relationship between Ms. Willis and Mr. Wade to determine whether either or both should be removed from the case.
Read more from the NYT here.
#2 After 150 Years Since First Graduating from Law School, Women Now Comprise More Than Half of Law Firm Associates. From the American Lawyer: “For the first time in history, women now make up more than half of associates at law firms, according to the National Association for Law Placement’s diversity report. … NALP Executive Director Nikia Gray in the report’s introduction said the data ‘is remarkable for both the fact that it was achieved, and for how long it took,’ noting that since NALP began gathering this data, which was 121 years after the first women graduated law school in the United States, it took another thirty-two years for women to achieve equal, and just slightly greater, representation among associates—153 years in total.” Read more here. Meanwhile, over at Bloomberg Law, reporter Tatyana Monnay puts the data into context and cautions against too much celebrating this milestone with her piece “Women, Minority Law Firm Gains Dampened by Litigation Threat.”
#3 FL Prosecutor Protected by First Amendment. From the New York Times: “Dealing a blow to Gov. Ron DeSantis of Florida, a federal court of appeals on Wednesday ruled that he had violated First Amendment protections when he suspended a progressive state prosecutor for political gain. The ruling, by the U.S. Court of Appeals for the 11th Circuit, undercut Mr. DeSantis on an episode he has made a key credential in his presidential campaign. Mr. DeSantis forced Andrew Warren, a Democratic state attorney representing the Tampa area, out of office in August 2022 after he had spoken out against Republican policies on abortion and transgender rights.” Read more here.
#4 Judge’s Romance Resignation Leads to Lawsuit. From Bloomberg: “A lawsuit alleging a former Texas bankruptcy judge improperly shielded a romantic relationship has been expanded to target his girlfriend, as well as law firms Kirkland & Ellis and Jackson Walker. The amended complaint filed Thursday is part of the ongoing fallout of David R. Jones’ relationship with a former attorney at Jackson Walker, a Texas firm that regularly represented clients in Jones’ courtroom before he resigned in October. Kirkland & Ellis, a behemoth in the restructuring community, and Jackson Walker filed ‘numerous misleading and dishonest federal court papers without disclosing the Jones-Freeman relationship,’ plaintiff Michael Van Deelen alleged in an amended complaint filed Thursday in US District Court for the Southern District of Texas.” Read more here.
#5 US Supreme Court Argument in Smith v. Arizona. From SCOTUSblog: “The Supreme Court on Wednesday appeared sympathetic to an Arizona man who contends that his constitutional rights were violated when an expert witness testified for the prosecution about drug analysis performed by another forensic scientist. Jason Smith alleges that the expert’s testimony contravened the Sixth Amendment’s confrontation clause, which gives defendants in criminal cases the right to ‘be confronted with the witnesses against him,’ and a majority of the justices seemed inclined to agree with him.” Read more here. At issue in this case is whether a prosecutor may use expert testimony about evidence not actually admitted with proper foundation. Learn more about this and other SCOTUS cases this term involving legal ethics issues at LER Bonus Content No. 3.
#6 Overbilling and Obligations of Junior Lawyers. From Kiplinger: “Fraudulent billing by lawyers is a big problem. This young lawyer took steps to stop her firm from misrepresenting her expertise for the purpose of overbilling.” Read more here.
#7 Is Use of AI Ineffective Assistance of Counsel? From Bloomberg Law: “Grammy-winning artist Pras Michel is ‘grasping at straws’ by claiming his lead lawyer provided faulty representation in an earlier criminal trial by relying on artificial intelligence, one of Michel’s lawyers testified. Michel’s defense team used a generative AI program from EyeLevel.AI to supplement its legal research, but lawyers never would ‘take the responses and run with it,’ the attorney, Alon Israely, said Thursday in DC federal court testimony. Michel, a popular artist turned political influencer, last April was convicted of 10 criminal counts … . His new legal team from ArentFoxSchiff is seeking a new trial based on allegations that his lead lawyer in the previous trial, David Kenner, offered deficient and ineffective assistance of counsel.” Read more here.
#8 Alternatives to the Bar Exam. From The Practice (Harvard Law Center on the Legal Profession): “In late 2023, Oregon became the first state to offer candidates the opportunity to take part in supervised practice instead of the bar exam. Brian Gallini, dean of Willamette University College of Law, argues that the Supervised Portfolio Practice Examination, as it’s called, should not be thought of as an alternative to the bar exam. … In this issue, we examine licensure reform and its implications. Across the country, advocates are asking: is the bar exam the best method for licensing lawyers? What other avenues might provide a better demonstration of a lawyer’s ability to practice?” Read more here.
#9 Increasing Violence and Security Threats for Judges. From Bloomberg Law: “Court leaders and officers from New York to Texas, and Florida to Illinois told Bloomberg Law that tribunals across the country are constantly preparing for threats against judges and government buildings that have become routine in 21st Century America.” Read more here.
#10 Global Perspectives - Legal Ethics Reform in Singapore. From Channel News Asia: “To ensure that lawyers and law students remain up-to-date with their ethical obligations, a report by a working group has recommended that ethics modules become a mandatory part of the bar exam and in continuing education modules for lawyers. Referencing the report in his speech at the opening of the legal year on Monday (Jan 8), Chief Justice Sundaresh Menon said that the move, which is being considered by a standing committee of legal representatives from relevant agencies, would address ‘notable gaps’ in ethics education within the profession.” Read more here.
This Week in Ethics History
January 20, 1986. MLK Day was first officially observed as a federal holiday, after President Ronald Reagan signed legislation in 1983. Many states resisted acknowledgement of the holiday, and some like Virginia combined it with other recognitions. (When I worked as an assistant city attorney for Charlottesville, Virginia, back in the early 2000s we got a four day weekend, with Lee-Jackson Day on Friday and MLK Day on Monday. Virginia finally ended this practice in 2020.)
January 18, 1996. The American Bar Association issued an opinion regarding the ethical obligations of lawyers facing funding cuts to the Legal Services Corporation budget. Read the opinion here. Congress reduced funding for the program, which provides free civil legal help for the poor, from $400 million in 1995 to $278 million in 1996. As reported by the Washington Post later that year:
Herman Lodge remembers the day the strangers in cheap suits came riding into town. They were young, idealistic and abrasive. But more important, they were lawyers. And so it came to pass that in the 1970s, attorneys working for the federally funded Legal Services Corporation filed a flurry of lawsuits on behalf of Lodge and other local blacks, embarking on a legal odyssey that won for African Americans here the right to sit on juries, school boards and even the Burke County Commission. It also made Lodge the first black elected official in a rural county the size of Rhode Island, where more than half the population is black and many of the people are poor.
Those days are history. Legal Services lawyers do not do that kind of work in Georgia anymore. The once busy legal aid office in Waynesboro has closed. It is a video rental store now. A circuit-riding attorney still visits a few times a month from the Augusta office, which covers 13 counties. They hand out pamphlets. There is a hot line to call. There is a lot of bitterness, too.
Read the full article here.
January 17, 2000. MLK Day was officially observed for the first time by all 50 states, with New Hampshire being the last to adopt legislation recognizing the holiday in 1999.
Ethics Reform Watch
Michigan Adds Humanitarian Exception for Financial Assistance to Pro Bono Clients
The Michigan Supreme Court recently amended the Michigan Rules of Professional Conduct in line with a 2020 change to American Bar Association Model Rule 1.8, which now allows attorneys to give "modest gifts to the client for food, rent, transportation, medicine and other basic living expenses" to indigent pro bono clients. As reported by Law360: “Lawyers in Michigan can give impoverished pro bono clients certain kinds of financial aid under a revision to the state's professional conduct code adopted by the Michigan Supreme Court on Wednesday. The change to the Michigan Rules of Professional Conduct is described as a ‘humanitarian exception’ to the general prohibition against lawyers providing financial assistance to clients. Under the rule change, attorneys representing indigent clients in a pro bono matter can pay for a client's transportation, housing, food and clothes ‘to facilitate the client's access to the justice system in the matter.’ … With the amendments, Michigan joins a number of states, including Alaska, Colorado, Connecticut, Massachusetts, Missouri, New York and New Jersey, in allowing attorneys to provide such financial help to impoverished clients.” The rule, effective May 1, is narrower than the ABA Model Rule. Again from Law360: “Attorneys can only provide specific forms of assistance: transportation, lodging if it is less costly than providing transportation for multiple days, meals and clothing, and assistance must be tied to helping the client participate in his or her case.” Read more here.
Recommended Reading — Recent Articles & Op-Eds
Legal Ethics After #MeToo: Autonomy, Domination, and Nondisclosure Agreements, Duke Law Journal (2023) by Sung Hui Kim (UCLA). From the abstract:
The legal profession has long embraced what is called the “standard conception” of legal ethics, the prevailing model guiding the social and professional norms of American lawyers since at least the 1970s. The standard conception requires lawyers to promote their clients’ interests vigorously within the bounds of law and urges lawyers to be morally neutral toward lawful client ends, regardless of even the predictable consequences of their representations, including any harms inflicted on third parties or the public at large. Central to the most prominent defenses of the standard conception is the value of individual autonomy, specifically the client’s. According to these defenses, when lawyers help to preserve and express the autonomy of clients vis-à-vis the legal system, lawyers provide a moral good.
This article challenges the standard conception—specifically, the critical role that “autonomy” plays in its justification. It calls for an alternative model of legal ethics that draws from the republican intellectual tradition. … To explore the autonomy externality problem in stark, real-world terms, Part IV conducts a case study of pre-filing nondisclosure agreements (“NDAs”) used by lawyers to settle sexual abuse claims made against powerful clients. It shows how lawyers who recommend, negotiate, and draft NDAs on behalf of their clients undermine the autonomy of third persons by enabling repeat sexual abuse. … Part V introduces an alternative conception of autonomy, based on the republican notion of liberty. Whereas liberal understandings of autonomy emphasize negative and certain forms of positive liberty, the republican conception of autonomy is the absence of domination. Returning to the case study of NDAs, it argues that an alternative model of legal ethics based on republican liberty is better able to assess autonomy tradeoffs and to provide moral guidance that better comports with our sense that some incursions on autonomy are more serious than others. It then offers suggestions on how we might rekindle the civic virtue of the legal profession around the value of republican liberty.
Stronger Attorney Rules are Needed to Avoid a Jan. 6 Repeat, Law360 by Ray Brescia (Albany). From the op-ed:
Whether it was their efforts to create fake slates of electors, pressure and malign poll workers, or advancing erroneous arguments that then-Vice President Mike Pence had the power to block the certification of the election results, lawyers served as the intellectual spark that led to the storming of the U.S. Capitol on Jan. 6, 2021. As the nation enters another presidential election year, faces the third anniversary of Jan. 6, and grapples with questions about former President Donald Trump's qualifications for office under the insurrection clause of the U.S. Constitution's 14th Amendment, the legal profession itself has taken no steps to reform its own rules when it comes to the duty lawyers have to uphold the rule of law and preserve the fair administration of justice. Since lawyers were so integral to the last insurrection, if the profession does not come to grips with its role in that effort, there is little standing in the way of lawyers helping to inspire another Jan. 6. And this time, it might just succeed, unless action is taken now to make sure no attorney feels free to take action to undermine the nation's core democratic institutions.
Lawyer(s) of the Week
The Association of American Law Schools announced last week that Kellye Testy will be its next Executive Director. From Reuters: “Law School Admission Council President Kellye Testy will step down this summer to become the executive director of the Association of American Law Schools, the AALS said on Thursday. Testy has led the Law School Admission Council since 2017 and oversaw a number of key changes to the Law School Admission Test — for which the council is best known.” Read more here. Testy was dean of the University of Washington School of Law from 2009-17, the first woman to lead the school. As a scholar, her research included access to justice. She was named earlier this month as the second most influential leader in legal education by the National Jurist. For her past and future leadership in legal education, Testy is our lawyer of the week.
Judge(s) of the Week
For being the first to actually rely upon the Supreme Court’s newly-adopted ethics code, Justice Elena Kagan is our judge of the week. From Law360: “Justice Elena Kagan became the first U.S. Supreme Court justice to cite the court's new code of conduct when choosing not to participate in cases, the court announced Monday. Justice Kagan’s recusal in the two cases is the first time the Supreme Court's new code of conduct, announced in November, was cited in a justice's recusal decision. Justice Kagan recused herself from the deliberations in two cases, both of which failed to be granted certiorari, pointing to the Code of Conduct for Justices of the Supreme Court of the United States, according to an order list issued by the Supreme Court.” Read more here. Even given my misgivings about the code and its lack of enforceability, it is good to see a justice taking it seriously.
Accountability in our Democracy
This part of the Roundup focuses on the legal profession’s accountability in our democracy. For a recap of past topics covered, head back to Roundup No. 21. As I explained there, starting this month, the Accountability in our Democracy section will feature nonprofit organizations working to improve lawyer and judicial ethics.
I submitted questions to founders and executive directors of more than a dozen organizations, and will be sharing what I learned from those who replied. Roundup No. 21 got you acquainted with their work and goals. (If you think I’m missing an organization from my list that should be added, please let me know!) Last week’s Roundup highlighted the work of Gabe Roth at Fix the Court.
This week we are taking a deeper dive into Responsive Law. Here’s my exchange with founder and executive director Tom Gordon.
RKJ: Please share one “success” in efforts to reform ethics and/or professional conduct rules governing lawyers and/or judges?
TG: The meta-issue that impacts all of these reform efforts is the self-governing nature of legal regulation. In every state, regulation of the legal industry is the responsibility of state bars and state supreme courts, with at best, token participation by anyone who isn’t a lawyer. In 2017, we were part of a successful effort in California to separate the trade association functions from the regulatory functions of the State Bar of California. The State Bar of California is now purely a regulatory agency, with trade association functions belonging to a separate California Lawyers Association. Furthermore, the SBC is required to have six non lawyer members on its 13-member Board of Trustees. This has made the SBC much more responsive to the public interest in regulation.
RKJ: What is the most important action that Congress could take immediately to address reforms proposed by your organization?
TG: Congress can play only a limited role, as regulation of the legal industry has been considered the domain of state courts and bars. However, the Federal Trade Commission and the Department of Justice Antitrust Division can play an important role by prioritizing antitrust actions against state bars that are engaging in anticompetitive conduct that—per the U.S. Supreme Court’s ruling in North Carolina Board of Dental Examiners v. FTC—is not immune from antitrust liability.
RKJ: What is the most important action that state or local government body could take immediately to address reforms proposed by your organization?
TG: States need to expand the people involved in regulating the legal industry beyond lawyers. When outside perspectives are part of the dialogue, regulation can truly be in the public interest, rather than being regulation of lawyers (and other providers) by lawyers for lawyers. This was the case in reforms that the State Bar of California was on the verge of approving in 2022 before the legislature intervened to stop the reform process.
RKJ: What is the most serious problem facing the legal profession today? How does your organization address this (if it does)?
TG: The legal profession faces dwindling relevance with most of the public. Although the public’s legal needs are as great as ever, lawyers have insisted on continuing an anachronistic service model that not only makes them unaffordable for most Americans, but makes them invisible. Allowing new service models that are precluded by present regulations would both lower prices and allow lawyers to be a part of consumer consciousness in the same way as doctors, childcare providers, realtors, and other service providers have expanded their presence through innovation.
RKJ: What’s the most influential book you’ve read, podcast you’ve heard, etc. that’s inspired you in your work?
TG: When I first started working on these issues in 2000, the legal profession thought reforming the rules governing UPL and alternative business structures were, to put it mildly, on the fringe. It’s not easy to pursue a path that many of your professional colleagues think is antithetical to the principles of the profession. Two things helped motivate me in the face of this opposition. One was that nearly everyone other than lawyers who I talked to about my work was supportive of these reforms. The second was a 1981 Stanford Law Review article by Deborah Rhode outlining the need for the same reforms I was advocating. If an eminent legal ethics scholar such as Professor Rhode saw the need for these reforms, then I knew that my views weren’t as untenable as many others in the profession seemed to think. [From RKJ - for more on the work and influence of Professor Rhode, see Roundup No. 24.]
Get Hired
Did you miss the 70+ job postings from previous weeks? Find them all here.
Associate General Counsel for Conflicts, Kilpatrick Townsend & Stockton LLP — Numerous Locations. Responsible for advising key stakeholders including senior management and other internal clients on firm issues related to ethics and conflicts analysis and resolution regarding potential new business intake and new and lateral attorney hires as part of the Office of the General Counsel. Learn more here.
Conflicts Analysis Attorney, Ballard Spahr LLP — Philadelphia or Remote. Responsible for identifying and assisting in the resolution of potential ethical and business conflicts arising out of the submission of conflict search requests, the intake of new clients and matters, requests relating to client/matter maintenance, and the hiring of lateral attorneys, contract attorneys, and non-lawyer staff. Learn more here.
Conflict Counsel, Spencer Fane — Kansas City. Responsible for reviewing and analyzing potential conflicts for new business and lateral hire attorney candidates. Learn more here.
Deputy Ethics Counsel, New Jersey Courts. Remember headline #3 from Roundup No. 3? New Jersey is hiring again! Handle all aspects of lawyer discipline from investigation to appearances before the Supreme Court of New Jersey and the Disciplinary Review Board. Based in Ewing, NJ, with possibility of two days/week remote. More details here.
Upcoming Ethics Events & Other Announcements
Did you miss an announcement from previous weeks? Find them all here.
Research on Women Leaving the Law. Are you a female-identifying, attorney (active or inactive) or former attorney who has either considered leaving or left a position, a legal practice, or the field of law? If so, please take a moment to complete this survey being conducted by Stacy Alexander, a Clinical Research Intern at F.I.R.E. Igniting Lives.
January 23 — The University of Texas Center for Women in Law Hosts Book Talk “Tread Loudly” by Kristine Cherek. In-person and via Zoom, at this free event Cherek will share her two-decade journey as an attorney, corporate executive, and college professor, offering wit, wisdom, and insight to inspire and move you to action in your careers and life. 11AM eastern. Register here.
January 25 — The Future of Legal Services, Part II: AI & The Law with Richard Susskind. This free virtual webinar on the impact of AI in legal services, including ethics issues. 3PM eastern. Register here.
January 30 — LawDroid Inaugural AI Conference. This free event will help you “master the latest AI advancements that can revolutionize your legal practice.” Topics will include “the intricacies of AI policy to ensure your practice remains compliant and informed.” (H/T Tom Martin) Learn more and register here.
February 1-3 — Association of Professional Responsibility Lawyers Mid-Year Meeting. Register here.
February 7 — International Legal Ethics Conference Call for Papers Deadline. Submissions opened last week for the 10th biennial meeting of the International Legal Ethics Association, which will be held July 17-19, 2024, in Amsterdam. (I love this conference. It’s where I got my start as a legal ethics scholar, a wonderful community of academics and experts who care deeply about lawyer and judicial ethics.) More information here.
February 9 — Fordham Urban Law Journal Symposium: With People Struggling and the Law Failing, What are the Solutions to the Access to Justice Crisis in America? Speakers include: Matthew Diller (Fordham), David Udell (National Center for Access to Justice), Lauren Sudeall (Vanderbilt), Norrinda Brown (Fordham), Tehra Coles (Center for Family Representation), Andrew Scherer (New York Law School), Neil Steinkamp (Stout), Rasheedah Phillips (PolicyLink), Larisa Bowman (Stanford), Bob Glaves (Chicago Bar Foundation), John Pollock (National Coalition for a Civil Right to Counsel), Radikha Singh (National Legal Aid and Defender Association), Bruce Green (Fordham), Matthew Burnett (American Bar Foundation), Michele Pistone (Villanova), Tanina Rostain (Georgetown), Rebecca Sandefur (Arizona State), Sateesh Nori (NYU), Ray Brescia (Albany), Hon. Glenn Grant, Laurel Jones (National Center for Access to Justice), and Janet Sabel (NYU). In-person and on Zoom. Register here.
March 15 — Symposium on Ethics in the Judiciary and the Legal Profession: Are We in Crisis? Cardozo Law School is hosting this in-person event, which starts at 9AM and is open to the public. A caveat—I’m one of the invited speakers. Speakers include: Melissa Murray (NYU), Richard Painter (Minnesota), James Sample (Hofstra), Sung Hui Kim (UCLA), Rebecca Roiphe (New York Law), W. Bradley Wendel (Cornell), Ian Ayres (Yale), Deborah Pearlstein (Princeton), and Daniel Richman (Columbia). More information here.
March 26 — Jeffrey Clark Disbarment Hearing Begins. This trial will be live-streamed on YouTube, and is scheduled for March 26-29 and April 1-5. (It was previously set for January.)
Wisdom for the Week
“Nothing can be permanently settled or solved. No state is perfect. No utopia exists but that it leaves someone out. All we can be is alert, like fox, to the changing winds, to ask ourselves in each new situation, what would we hate anyone to do to us, and who have we forgotten?” — Naomi Alderman, reading an excerpt from her new book The Future to Ari Shapiro on NPR’s All Things Considered, January 9, 2024
Catch Up
Here’s a list with links to the top five most-read editions of the Legal Ethics Roundup.
Keep in Touch
News tips? Announcements? Events? A job to post? Reading recommendations? Email legalethics@substack.com - but be sure to subscribe first, otherwise the email won’t be delivered.
Teaching Professional Responsibility or Legal Ethics? Check out the companion blog for my casebook Professional Responsibility: A Contemporary Approach for teaching ideas and other resources.
Want me to speak about my new book Law Democratized with your group or organization? Email my publicist Sydney Garcia at sydney.garcia@nyu.edu
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I wish you a wonderful week! See you next Monday.